THE CIVIL COURTS
We come now to the Civil Courts, wherein all suits relating to
property, to inheritance, and to money are tried.
I have already referred to the archaic state in which, all over India,
matters of marriage and inheritance remain; no change has taken place
during our rule, nor could do so. Except in Burma, all these matters
are connected with religion, and although people when in a progressive
state will themselves not hesitate to break through fetters of religion
and custom, they will never allow a foreign Government to do so. Our
Government interferes already in a great many matters it had better
leave alone, and to lay a sacrilegious finger on domestic concerns
would cause instant antagonism. It is not our business. Is Government
thus to intrude into the very home? You can imagine the howl there
would be, and rightly. We must not touch them, and the people,
disorganised as they are, cannot touch them; so there they remain.
In a previous book I have referred to the Burmese law that no one may
make a will, and to its effect in preventing Burmans building up a
business. Moreover, the law of inheritance is so doubtful sometimes
that when a rich Burman dies his estate usually goes into Court and,
naturally, does not come out again. This is very unsatisfactory, but
until there is some real self-government I see no help for it. On a
matter of this kind it is of no use collecting the opinions of any
number of Burmans as to what should be done, and so passing an Act. It
is a fact to which I shall have to revert later that men as individuals
will give an opinion, which if combined into an assembly with authority
to act they would greatly modify. Moreover, if our Government were
responsible, individuals would urge action, which if they themselves
were responsible they would not take. No advice that is not steadied
by a sense of responsibility is of much value. Our Government cannot
deal with such matters. Only a body representing Burmese opinion and
responsible to that opinion could do it. There is not now any prospect
of any such body. The present Councils are useless. There may be such
a body in course of time, but until there is, matters must remain as
they are. The result is discontent, naturally.
Take another similar point. In Upper Burma a good deal of the land is
what is called ancestral land; that is to say, in private hands. Now
there was amongst the people a great pride in holding land their
ancestors held, and such land is very rarely sold. I am not quite sure
that it can be sold. Neither is it mortgaged in the usual sense. What
the owner does is to hand the land over to a mortgagee for a sum of
money. He pays no interest on the debt because the mortgagee enjoys
the land. Such a transaction is called a usufructuary mortgage. The
owner can at any time redeem the land by repaying the original loan.
In Burmese time there was no period of limitation, but our Limitation
Act has imposed a limit of sixty years. Thus a man may hand over a
piece of land to a mortgagee, go off to Lower Burma--as many have--and
at any time within sixty years he or his heirs can redeem the land for
the same sum.
Consider what this means. I am the mortgagee of a piece of land. If I
improve it so that its value is increased the owner can come back,
borrow money to redeem it, and re-mortgage it for double the amount
next day to someone else. Therefore I certainly won't improve it. I
can't sell it. I can work it of course. I have also to defend my
title every now and then from attack. It may be that the original
mortgagor did not own the land at all. He may have simply been the
member of the family in whom the occupation was vested. The other
members can challenge my right. They do. And this sort of thing can
go on for sixty years. That is not the sort of law to encourage
progress. It encourages litigation, but that is all. The whole
country groans under it naturally. But before any relief could be
given there would have to be some consensus of opinion among the people
as to the change. Government could not do it themselves. Even if
their amendment were good it would raise a hornets' nest about their
ears.
Thus here again is an _impasse_, and a dangerous one, typical of many.
By our system of Civil Law and Civil Courts, of precedent and case law
we have petrified the bonds in which India lay when we arrived and made
them far more rigid than before. While by our introduction of new
ideas and of greater material progress we have rendered the old laws
more and more obsolete, we have at the same time stopped all evolution
of these laws, and killed any capacity they had for accommodating
themselves to change. Some lawyers even, enthusiastic as they are
about their own profession, have seen this danger. Here is what Sir
Henry Sumner Maine, who was Legal Member to the Government of India,
says:
"What that law and usage"--Indian law and usage--"was, the Sudder Court
used to ascertain with what some would call most conscientious accuracy
and others the most technical narrowness. Under the hand of the Judges
of the Sudder Courts the native rules hardened and contracted a
rigidity which they never had in real native practice. Among the older
records of their proceedings may be found injunctions couched in the
technical language of English Chancery proceedings which forbid the
priests of a particular temple to injure a rival fane by painting the
face of their idol red instead of yellow, and decrees allowing the
complaint of other priests that they were injured in property and
repute because their neighbours rang a bell at a particular moment of
their services. There is in truth but little doubt that until
education began to cause the natives of India to absorb Western ideas
for themselves the influence of the English rather retarded than
hastened the mental development of the race."
And it does so more and more, because however much they may absorb
Western ideas theoretically, they cannot express them practically owing
to our petrifaction of their law and custom.
Again. "The methods of interpretation which the Sudder Courts borrowed
from the Supreme Courts imported from Westminster Hall put a stop to
any natural growth and improvement of Hindu law."
That is to say we introduced new ideas, but sat on the safety-valve
lest they should produce any effect. Sir Henry Sumner Maine's book is
full of similar expressions, but I need quote no more. Those who wish
to read how a lawyer himself has admitted this failure of law will no
doubt read the book for themselves.
And now let us go on to the other functions of the Civil Courts--money
decrees and so forth.
I do not think that they are any more in touch with the public than the
Criminal Courts.
To begin with, they suffer from the same defect that a trial before a
Civil Court is not an inquiry into truth, but a duel between parties.
Indeed this is even more manifest than in the Criminal Courts, for
there the magistrate does to the best of his small ability go outside
the record and try to ascertain facts for himself; in the Civil Courts
the judge never does so. He is simply and purely an umpire. Has the
plaintiff proved his case? If so, give him a decree; if not, then not.
Therefore perjury, and even forgery, are more common here than in the
Criminal Courts.
Now let us go back to the way suits originate, and see what the cause
is.
There are, of course, a few cases where the issue is clear from the
first. A dies. B and C both claim his inheritance. Here from the
beginning is a clear issue which can be brought into Court and fought
out. It must come into Court, because in no other way could it be
settled. But there are few such suits. In the great majority of cases
the original issue is quite a small one, but when it comes into Court
it is, by one side or the other, or both, swollen out of all
recognition. Take the following as an example. It is from a case I
heard once.
A and B were both natives of India--Hindus--and had been partners. I
cannot remember their business beyond that they bought articles in
Upper India and imported them into Upper Burma, where they sold them.
It was a small business. One partner would go to India, buy stock, and
return with it to Burma. They would both trade in it, and when it was
nearly done one of them would go away to India again. This had gone on
for some years. They agreed together excellently and made a decent
profit. They kept all their accounts in their heads, aided by an
occasional scrap of memoranda, and made a settlement from time to time.
Then they would begin afresh.
At last came a disagreement.
When A returned to Burma with a new stock, B objected to the price paid
for one item, alleging that A had been "done," and had paid too much.
A indignantly repelled this accusation. B stood to his guns. The item
was only about five hundred rupees, and the difference was not more
than twenty or thirty rupees, but neither would give way.
The quarrel grew. B said he would not share in the item; A said he
must, as it was a partnership transaction. B said he didn't care. A
said he would sue him in Court. B said, "Very well, sue me." So each
went off to get a pleader.
In due time the case came into Court, but what a case! Each side had
considered that if he had got to fight he had better get all the
weapons he could, so he raked up everything he could think of. It was
a duel, you see, wherein each side fought not to settle the little
point at issue, but for victory--any kind of victory he could get.
Each side stirred up every sleeping dog of war he could find,
resuscitated and galvanised dead dogs, made up imitation dogs, and came
to battle.
The issues finally framed covered several years' transactions, and the
evidence included forged documents and quantities of perjury. Both
sides were ruined.
That is what comes of making a trial a duel. Each side fights for
victory, to save his _amour propre_, and to wound the enemy wherever he
can. The original cause of difference is quite lost.
Now that case is typical of many. It is illustrative of human nature
all the world over. If you awake the fighting instinct you cannot
confine the parties to the original seat of war; they will urge the
attack wherever they are likely to win. They cannot go to the judge in
the beginning as to a friend of both parties who will inquire into the
cause of difference himself and find a reasonable settlement, because
judges are not intended to do that. Therefore parties do not go to
Court at all until they have determined to fight it out. The case does
not come to Court till matters are hopeless.
You may say they should or could have gone to an arbitrator. Do people
anywhere in the world trust an unofficial arbitrator? There is a
provision in Upper Burma allowing reference to arbitration, but it is a
dead letter.
The original dispute in this case was about twenty or thirty rupees,
the alleged excess paid for the goods. The suit filed was for several
thousand rupees in transactions spread over years: there was an equally
heavy counterclaim.
The total value of the suits filed in Burma in 1910 was about
£1,380,000. I wonder what the value was of the matters first in
dispute before the cases came to Court. A fifth, I dare say, would
cover them. I notice much the same thing in England. Human nature
does not differ East or West.
Now consider the enormous expense of all this. The value of the
subject-matter of suits filed in Burma in 1910 was, as I have said,
£1,380,000. The value of the matters really in dispute before they
came to Court was infinitely less, but Court fees and lawyers' fees had
to be paid on the full amount. Witnesses in thousands were called to
prove matters that should never have come into Court at all.
And with what result?
There were 70,203 suits filed and decrees given, but in 53,594 of these
satisfaction could not be obtained, and so the decree-holders had to
come to Court for warrants for execution. That is to say that in over
five suits out of seven the losing party could not or would not pay.
(It does not follow that in the other two out of the seven he did pay.
The decree-holder in a percentage of cases no doubt did not think it
worth while to go any further.)
But in 53,594 cases he came to Court for execution. What did he get?
In half these cases he got absolutely nothing; the execution was
"wholly infructuous." In the other cases satisfaction was obtained in
full or in part.
Thus out of £1,380,000 claimed how much was obtained? The Report does
not give figures, but the reader can judge for himself it wasn't much.
And to get even this little, what was the cost to the litigants, that
is the public? No one knows. But there are a great many lawyers of
kinds in Burma, and a good deal of money goes into their hands.
I do not think it would be an over-estimate to say that for every pound
originally in dispute two pounds were spent in costs and only ten
shillings recovered, and to get this, think of the trouble, the worry,
the indignity, and the self-contempt involved. Besides, think of the
waste of time--to say nothing of truth.
In the Report from which I take these figures the Judges of the High
Court point out that the Courts are yearly becoming less and less used
by the public. They can't think how this can be; but they suppose it
is due to years of prosperity. That it should be due to anything wrong
about the Courts never occurs to them. Yet perhaps the reader will see
reason to doubt if the system of Civil Justice is perfect.
There is an Indian proverb that it is wise to go to law once, foolish
to go twice. I asked an Indian about this.
"Why is it wise to go once?" I asked.
"Because," he answered, "you learn a great deal, quite a great deal,
which you never forget. You learn, anyhow, not to go twice."
"But," I objected, "suppose on a subsequent occasion money were due to
you which you couldn't get, would you sit down under the loss?"
He looked at me and laughed. "Well," he said, "if it were a small debt
I should let it go. If I thought the man could not pay I would let it
go, big or little; but if I thought he could pay and wouldn't, I
wouldn't sue him; no, but I wouldn't put up with him either."
"What then would you do?"
"Well," he answered reflectively, "I think I should rob him."
"But that might bring you into a Criminal Court," I remonstrated.
"So it might," he replied; "but the Criminal Courts can't be worse than
the Civil; and, anyhow, it would be a change."
As to the Insolvent side of the Civil Courts, perhaps if I say that it
is no nearer the people than any other side, enough will have been
said, and later on I shall have a story to tell of some of my
experiences, but this is not the place.
What is gained by imprisoning a man for debt? Nothing that I ever
heard of. It is not required to deter him from being ruined again; he
probably won't get the chance, and if he did the fact of having been
sold up once is quite sufficient deterrent from wanting to be sold up
again.
Will it deter others? People don't get ruined for the fun of the
thing. It is a dreadful thing to be sold up; in itself that is quite
enough. Then what good does imprisoning the poor devil do? It does
none. It does harm, and nothing but harm. It hurts the debtor and
prevents his recovering himself; it panders to the desire of society
and of creditors for revenge. There is an idea abroad that when
anything untoward happens somebody should be punished, and then society
will have vindicated itself. But the duty of society is to prevent
crime, not punish it, and it cannot whitewash itself in this way. It
merely condemns itself more even than it condemns him it punishes.
Moreover, the ability of creditors to imprison debtors is misused in a
way that is almost criminal. The creditor will imprison the debtor
with the hope that the debtor's relatives and friends will subscribe to
save him and them from this disgrace. That is to say, the law allows a
creditor to put improper pressure on totally innocent people in order
to get his claims satisfied. Think of the iniquity of a law like that!
And what are these claims? Are they just claims? They are legal
claims, but are they just?
For the most part they are claims of money-lenders. The Courts act as
collecting agencies to the most oppressive system of money-lending that
can be imagined. Two and a half per-cent per month is not unusual.
Government has shown its recognition of this danger by creating
Co-operative Credit Banks, which are a great boon. But it has not
thought of revising its Civil Court procedure. As in most other
matters, it recognises something wrong, but attributes it to the
people, not to the Courts and the law; therefore it does nothing.
But at all events imprisonment for debt should be abolished. There
were eight hundred unfortunate debtors imprisoned in Burma in 1910.
Do you wonder that the people dread and hate the Courts?
Civil law embraces a great variety of suits besides suits for money,
and includes a great number of special laws. The harm that has been
done by fossilising Hindu, Mohammedan, and Buddhist law and custom has
been already mentioned; to enter further into these matters is
unnecessary. Once it is clearly recognised that the law and the Courts
require amendment, not in details but in fundamental principles, there
will be many better critics than I am. For although I have been
obliged to learn some law in order to do my work, I was never an apt
student of it. Humanity and justice are the only studies I really care
for. Law is mainly a denial of both. Therefore if the Government of
India and the local officials will but give up thinking that where law
and human nature disagree it is so much the worse for human nature,
they will soon find out where the present laws are wrong. But before I
close this chapter there is one further point I wish to mention, and
that is the trial of Burmese divorce suits by our Courts. Now that is
wrong, absolutely wrong, and indefensible in every way. The Courts are
not concerned with divorce. It is by Burmese custom and common sense a
purely village matter. Divorces can be given by the elders, and they
alone should be allowed to pronounce them. For they are sensible men,
and in such cases they act not as judges, but as neighbours. They will
grant no divorce till they have exhausted all means of conciliation.
They know the parties as no judge can know them; they know who is to
blame, how he or she is to blame, how the difference can be adjusted.
It is to their interest to smooth things down and prevent their getting
worse. Theoretically the breakers of marriages, they are in fact the
preservers of marriage. It is by their tact and common sense that
couples are kept together, and that only when matters become impossible
divorces are granted.
But a judge is different. He knows nothing, cares nothing, can do
nothing but listen to the complaint and grant the divorce. It must
legally be granted at the request of either party, remember. To allow
a judge to try divorce cases is a violation of Burmese law and custom,
and is another and deep injury to the village community. How and why
it was ever allowed I don't know. I suppose no one ever thought about
it. Divorces in England are granted by Courts according to English
law, therefore in Burma divorces can be granted according to Burmese
law. I suppose that was the argument--if ever there was any argument
at all.
In any case it is wrong. Divorces are properly granted by the elders
acting on behalf of the community, and by no one else. Therefore the
interference of the Courts should be immediately stopped.
But apart from this, the questions of marriage and inheritance are very
difficult. No alien Government can solve them. They must await a real
Council that can deal with such matters with knowledge and
responsibility.